MARCIE A. REDGRAVE, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. DOUG DUCEY, Governor; THOMAS J. BETLACH, in his official capacity as Director of the Arizona Health Care Cost Containment System; ARIZONA DEPARTMENT OF ECONOMIC SECURITY; ARIZONA DIVISION OF DEVELOPMENTAL DISABILITIES, Defendants-Appellees.
No. 18-17150
United States Court of Appeals, Ninth Circuit
March 25, 2020
D.C. No. 2:18-cv-01247-DLR. Appeal from the United States District Court for the District of Arizona. Douglas L. Rayes, District Judge, Presiding. Argued and Submitted February 4, 2020, Phoenix, Arizona.
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MARCIE A. REDGRAVE, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. DOUG DUCEY, Governor; THOMAS J. BETLACH, in his official capacity as Director of the Arizona Health Care Cost Containment System; ARIZONA DEPARTMENT OF ECONOMIC SECURITY; ARIZONA DIVISION OF DEVELOPMENTAL DISABILITIES, Defendants-Appellees.
No. 18-17150
D.C. No. 2:18-cv-01247-DLR
ORDER CERTIFYING QUESTION TO ARIZONA SUPREME COURT
Appeal from the United States District Court for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted February 4, 2020
Phoenix, Arizona
Filed March 25, 2020
Before: Diarmuid F. O‘Scannlain, Susan P. Graber, and Eric D. Miller, Circuit Judges.
Order by Judge O‘Scannlain
SUMMARY*
Certification of Question to State Court
The panel certified the following question to the Arizona Supreme Court:
Has Arizona consented to damages liability for a State agency‘s violation of the minimum wage or overtime provisions of the federal Fair Labor Standards Act,
29 U.S.C. §§ 206-207 ?
COUNSEL
Kaitlyn Redfield-Ortiz (argued), Nicholas J. Enoch, and Stanley Lubin, Lubin & Enoch P.C., Phoenix, Arizona, for Plaintiff-Appellant.
Cory G. Walker (argued) and Mark Ogden, Littler Mendelson P.C., Phoenix, Arizona, for Defendants-Appellees.
ORDER
O‘SCANNLAIN, Circuit Judge:
Pursuant to
I
The question to be answered is:
Has Arizona consented to damages liability for a State agency‘s violation of the minimum wage or overtime provisions of the federal Fair Labor Standards Act (“FLSA“),
29 U.S.C. §§ 206–207 ?
The Arizona Supreme Court may rephrase the question as it deems necessary.
II
Counsel for Plaintiff-Appellant Marcie A. Redgrave are:
Nicholas J. Enoch
Stanley Lubin
Kaitlyn A. Redfield-Ortiz
LUBIN & ENOCH, P.C.
349 North Fourth Avenue
Phoenix, AZ 85003
(602) 234-0008
Counsel for Defendants-Appellees Doug Ducey, in his capacity as Governor of the State of Arizona; Thomas J. Betlach, in his capacity as Director of the Arizona Health Care Cost Containment System; the Arizona Department of Economic Security; and the DES Division of Developmental Disabilities are:
Mark Ogden
Cory G. Walker
Littler Mendelson, P.C.
2425 East Camelback Road, Suite 900
Phoenix, AZ 85016
III
A
Marcie Redgrave works as an in-home caretaker for an individual with cerebral palsy. That individual, P.L., is a beneficiary of the Arizona Long-Term Care System (“ALTCS“). ALTCS is a Medicaid program operated by the Arizona Department of Economic Security‘s Division of Developmental Disabilities (“DDD“), which functions as a managed care organization. Called an “independent provider,” Redgrave is hired directly by DDD.
Redgrave has served as P.L.‘s attendant caretaker in several states. She alleges that she is responsible for P.L.‘s round-the-clock needs: personal hygiene, preparing meals, managing medical appointments, housecleaning, laundry, and assistance in P.L.‘s daily activities, such as visiting friends, all allowing her little time off. In 2010, Redgrave and P.L. moved to Arizona, where P.L. became a beneficiary of ALTCS. According to Redgrave, she is paid $12.30 an hour for sixteen hours a day, seven days a week. Before her compensation was adjusted in 2016, she asserts that she was paid for only eight hours a day, seven days a week. Redgrave argues that she and other independent providers work twenty-four hours a day and, at the very least, that the DDD‘s method for calculating compensation hours violates federal regulations.
B
In February 2018, Redgrave filed this putative collective action “on behalf of herself and other similarly-situated Independent Providers” in Maricopa County Superior Court pursuant to
forty hours);
Redgrave sued her alleged employer, DDD, along with the Department of Economic Security (of which DDD is a division), Thomas Betlach in his official capacity as Director of the Arizona Health Care Cost Containment System, and Doug Ducey in his official capacity as Governor of Arizona. For our purposes, we refer to the four Defendants-Appellees collectively as simply “the State.”
C
The State removed the case to federal court, asserted its sovereign immunity from such claims, and moved to dismiss the case. In the district court, Redgrave raised two objections to the State‘s purported sovereign immunity: first that, by removing the case to federal court, the State waived its sovereign immunity and, second, that Arizona has waived its sovereign immunity from FLSA claims as a matter of law. The district court rejected
On the question of whether Arizona waived its sovereign immunity from FLSA claims as a matter of law, the district court concluded that neither the Arizona Supreme Court‘s decision to abrogate state sovereign immunity in Stone v. Arizona Highway Commission, 381 P.2d 107 (Ariz. 1963), nor the Arizona State Legislature‘s limitations on state sovereign immunity established in the Actions Against Public Entities or Public Employees Act (“Public Entities
Act“),
IV
A
Our court has determined that when a State removes a case it invokes the jurisdiction of the federal district court and thereby waives the sovereign immunity from suit it would enjoy in state court. Walden v. Nevada, 945 F.3d 1088, 1092 n.1, 1094–95 (9th Cir. 2019). The State asserts that its removal of this case did not effect a waiver of its sovereign immunity from liability. Indeed, the several circuits to share Walden‘s conclusion all hold that removal merely waives immunity from suit but not the defense of immunity from liability. See, e.g., Trant v. Oklahoma, 754 F.3d 1158, 1172 (10th Cir. 2014); Stroud v. McIntosh, 722 F.3d 1294, 1302 (11th Cir. 2013); Lombardo v. Pa. Dep‘t of Pub. Welfare, 540 F.3d 190, 198 (3d Cir. 2008); Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 255 (5th Cir. 2005); see also Jessica Wagner, Note, Waiver by Removal? An Analysis of State Sovereign Immunity, 102 Va. L. Rev. 549, 555-60 (2016) (describing the split of authority between those circuits holding that removal does not waive state sovereign immunity at all and those holding that removal waives immunity from suit but not immunity from liability). A state‘s invocation of sovereign immunity from liability would be an affirmative defense to a congressionally created private right of action for damages, such as those under FLSA. As the Supreme Court explained in Alden v. Maine, 527 U.S. 706 (1999), because the states retain a “residuary and inviolable sovereignty,” it is beyond the
power of Congress to authorize private suits for monetary damages against a state without that state‘s consent to such actions. Id. at 712, 715, 748-54. We have not decided and in this Order do not decide whether removal to federal court effects a waiver of such state sovereign immunity from liability.
We ask the Arizona Supreme Court to advise whether Arizona possesses the defense of immunity from FLSA liability in the first place. In other words, we ask whether Arizona is among those states that consent to private suits for damages for violations of FLSA‘s overtime and minimum-wage provisions or if it is among those states that do not so consent. Cf. Meyers, 410 F.3d at 253 (“[C]ourts must look to the law of the particular state in determining whether it has established a separate immunity against liability . . . .“).
B
The Public Entities Act identifies a range of circumstances in which Arizona maintains its sovereign immunity. See
shall not be liable for acts and omissions of its employees constituting either of the following:
- The exercise of a judicial or legislative function.
- The exercise of an administrative function involving the determination of fundamental governmental policy.
1
In the view of the State‘s counsel and the decision of the district court, the Public Entities Act waives only Arizona‘s sovereign immunity from tort liability. The district court read the 1963 Stone decision as having abrogated “governmental immunity from tort liability” only. Stone, 381 P.2d at 109; see Redgrave, 2018 WL 4931722, at *2. Under this view, the Public Entities Act, which was initially proposed by the Governor‘s Commission on Governmental Tort Liability, created an exception to Stone‘s abrogation and selectively reasserted governmental tort immunity. See Glazer v. State, 347 P.3d 1141, 1144 (Ariz. 2015); City of Tucson v. Fahringer, 795 P.2d 819, 820 (Ariz. 1990) (calling the Public Entities Act a “tort claims act“). Thus, the district court concluded that Arizona retains its inherent right to immunity from non-tort claims, including, of course, FLSA claims. Redgrave, 2018 WL 4931722, at *2.
Despite Stone‘s focus on tort claims, the Public Entities Act itself may occupy the field of Arizona‘s law of sovereign immunity. See Backus v. State, 203 P.3d 499, 502 (Ariz. 2009); City of Phoenix v. Fields, 201 P.3d 529, 532 (Ariz. 2009) (calling the Public Entities Act “a comprehensive statutory scheme governing actions against public entities and employees“). Indeed, many references to “tort liability” were removed from the bill during the drafting process, indicating a legislative purpose to define state sovereign immunity more broadly. Compare Governor‘s Comm‘n on Governmental Tort Liability, Ariz. Governmental Tort Claims Act (Dec. 16, 1983), with 1984 Ariz. Sess. Laws 1091-94; cf. Russello v. United States, 464 U.S. 16, 23–24 (1983) (“Where Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended.“). However, the remaining reference to tort immunity—in the residual “other immunities” provision—could be understood to limit the Public Entities Act‘s scope to tort claims. See
Arizona courts have from time to time applied the Public Entities Act‘s provisions to non-tort claims. E.g., Fields, 201 P.3d at 531, 534 (applying the Public Entities Act‘s requirement under
to pay wages);1 Kromko v. Ariz. Bd. of Regents, 146 P.3d 1016, 1022, 1024 (Ariz. Ct. App. 2006), vacated on other grounds, 165 P.3d 168 (Ariz. 2007) (holding that, under
2
Another possibility is that the Public Entities Act effects a waiver of Arizona‘s state sovereign immunity from both tort claims and non-tort claims but that such a waiver is limited to claims arising out of state law—in other words that Arizona specifically retains its immunity from federal law claims like those in this case. Such a reading is supported by the Public Entities Act‘s enacted statement of purpose, in which the Legislature declared it “to be the public policy of this state that public entities are liable for the acts or omissions of public employees in accordance with the statutes and common law of this state.” 1984 Ariz. Sess. Laws 1091-92 (emphasis added). Insofar as the scope of the Public Entities Act‘s provisions is ambiguous, the enacted statement of purpose may suggest that the Act does not govern immunity from federal claims. Cf. Antonin Scalia &
Bryan A. Garner, Reading Law 218 (2012) (“[T]he prologue does set forth the assumed facts and the purposes that the majority of the enacting legislature . . . had in mind, and these can shed light on the meaning of the operative provisions that follow.“).
3
Finally, we are unsure whether to read the Public Entities Act by applying the usual rule of construction that a sovereign does not subject itself to liability unless it does so explicitly. “[A] waiver of the Government‘s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Peña, 518 U.S. 187, 192 (1996); see also Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 146–50 (2010) (describing the long history of the canon requiring a clear statement before interpreting a law to override sovereign immunity). Yet the Arizona Supreme Court may have flipped the traditional rule—at least in dicta. According to the Court, “governmental liability is the rule in Arizona and immunity is the exception . . . [w]e therefore construe immunity provisions narrowly.” Doe ex rel. Doe v. State, 24 P.3d 1269, 1271 (Ariz. 2001). It is not apparent, however, whether the canon is only reversed as to tort claims (if at all). See, e.g., Fahringer, 795 P.2d at 820 (stating the rule as “when a government entity or employee is a defendant in a tort action, ‘the rule is liability and immunity is the exception‘” (quoting Stone, 381 P.2d at 112)).
V
It appears to this court that there is no controlling precedent of the Arizona Supreme
FLSA. We thus request that the Arizona Supreme Court accept and decide the certified question.
In light of our decision to certify the question set forth above, submission of this case is withdrawn, and all proceedings are stayed pending the Arizona Supreme Court‘s decision whether it will accept review and, if so, receipt of the answer to the certified question. The Clerk is directed to administratively close this docket pending further order. The parties shall notify the Clerk of this court within one week after the Arizona Supreme Court accepts or rejects the certified question, and again within one week after the Arizona Supreme Court renders its opinion if accepted. The panel will resume control and jurisdiction upon receipt of an answer to the certified question or upon the Arizona Supreme Court‘s decision to decline to answer the certified question.
The Clerk of this court shall file an original and six copies of this order with the clerk of the Arizona Supreme Court. Upon request of the Arizona Supreme Court and as the Arizona Supreme Court deems necessary, the Clerk of this court shall transmit the original or copies of portions of the record.
IT IS SO ORDERED.
/s/ Diarmuid F. O‘Scannlain
Diarmuid F. O‘Scannlain,
Circuit Judge